The Essence of Nonsense: It Does Make Sense

In its lead story, the Daily Times of Wednesday, 12 October, 2011, runs a story on the on–going treason case of Republic v Cassim Chilumpha and Yusuf Matumula. As an officer of the court, I should be the last to comment on the merits and demerits of the case at this stage. However, one element of the proceedings in the case has disturbed me. Simeon Maganga reports (and I have confirmed this with colleagues in the profession) that Lead Counsel for the State, Anthony Berry, QC, persistently objected to the nature of the cross–examination of state witness, Thomas Elias Ndhlovu, by defense counsel. Lead Counsel was of the view that cross–examination cannot include matters that are not in a witness statement. The presiding Judge, the Honourable Justice Kenan Manda, persistently clarified the position of the law in Malawi: Cross–examination can include matters that are not in a witness statement. Lead Counsel then made the dumb–founding declaration: The position of the law in Malawi on cross–examination is ‘nonsense’. Lead Counsel was asked to withdraw this ‘conclusion’, as it were, and to apologise. He withdrew the word ‘nonsense’ and apologised to the court.

Well, I suppose the expectation is that with the withdrawal of the offensive word and the apology that was made, life must go on. I dare say, not so fast. I have at least two issues to raise here. First, is there an essence of ‘nonsense’? What is it? Second, how may we understand the declaration by a lawyer for the State that the law on cross–examination in Malawi is, in fact, nonsensical? In understanding the essence of ‘nonsense’, the starting point is its orthodox conception. ‘Nonsense’ is often understood as the absence of ‘sense’ or ‘meaning’. Hence, every day we all hear or read that so and so does not ‘make sense’ or that what so and so says or writes is ‘meaningless’. Or indeed, that ‘something’, by its nature, is ‘nonsense’. To my mind, this entails that the necessary question also becomes: what is ‘to make sense’? Put another way, what does ‘meaning’ mean?

The fields of philosophy of language and philosophy of science respectively have engaged with the nuances of ‘sense’ and ‘meaning’ (of ‘something’). I do not intend to extensively delve into such eminent scholarship here. Suffice it to say that the indictment that ‘something’ is ‘nonsense’ is, in my view, a result of at least three factors: information, interpretation and egotism. On the basis of the kind of information a person possesses, ‘something’ may ‘make sense’ or ‘not make sense’ to him or her. Indeed ‘something’ may have ‘meaning’ or ‘it’ may be ‘meaningless’. This information may be available prior to the moment of perception; it may be obtained instantaneously or at a date in the future.

Interpretation is also related to the nature (or quality) of information a person possesses. However, beyond interpretation, value underlies interpretation. The nature (or quality) of value may be influenced by religious belief, political inclination, culture, power dynamics, among other factors.

Let us now look at the case where ‘something’ is ‘nonsense’ based on egotism. Here, the nature (or quality) of the information or interpretation on ‘something’ does not matter. What matters is the feeling of self–importance of the self based on the innate character of the self (some persons are simply egotistical); the (false) sense of cultural, religious or political superiority; or an introverted worldview, that is, nothing else matters.

If ‘something’ is ‘nonsense’ because of the nature (or quality) of information or interpretation, it is possible for that ‘something’ to evolve into ‘sense’ or ‘meaning’ through a process of nuanced analysis. Where ‘something’ is ‘nonsense’ on the basis of egotism, it is the most challenging indictment of a state of ‘nonsense’ to deal with. Information or interpretation may not change this indictment.  Indeed, where ‘something’ is ‘nonsense’ based on egotism, the world is linear; there is no ‘alternative’; there is no ‘other’.

Let me now turn to the second issue, namely, how we may understand the declaration by a lawyer for the State that the law on cross–examination in Malawi is, in fact, nonsensical. As a fleeting background, take note that the State may commence a case against a party as the sovereign embodiment of the people of a polity. (In law, this is called the parens patriae principle; literally translated as ‘parent of the nation’). Hence, under the parens patriae principle, in criminal cases, the State, as the prosecuting authority, commences a case against a defendant in its courts using laws enacted in its legislature. In other words, the State is using the three arms of government to pursue ‘justice’ through due process of law.

If counsel is arguing a case on behalf of the State, he or she is doing so on the basis of a higher duty. It ought not to be on the basis of a personal interest. The charges brought against a defendant and the applicable law must be understood and respected within the State apparatus. Hence, counsel for the State in a criminal case cannot declare in a court of law (a State organ) that a law on some matter (the law having been enacted by yet another State organ, Parliament) is ‘nonsense’. It is a contradiction. It is an irony. Counsel is exercising State authority to prosecute and yet at the same time purports, in the exercise of that authority, to denigrate the laws enacted by the same State.

Let me end as follows: In Chilumpha and Matumula, Anthony Berry, QC, declares the law on cross–examination in Malawi as nonsensical in (supposed) preference to the law on the matter that applies in England and Wales. Should the Court be clarifying the position of the law (on any aspect of a criminal trial) to Lead Counsel for the State? Should it not (ideally) be the other way round, if at all? What is the basis of the parens patriae principle in Chilumpha and Matumula; is it the England and Wales jurisdiction or the Malawi jurisdiction? I am aware that the Director of Public Prosecutions is the ultimate prosecutorial authority under Malawi’s Republican Constitution. If  counsel, other than the Director of Public Prosecutions, is to exercise the State’s authority to prosecute, then such counsel must profess knowledge of, and expertise in, the criminal law, and the criminal procedure and evidence law, that applies in Malawi. If this cannot be achieved or guaranteed, then the expectation is that the Director of Public Prosecutions ought to prosecute cases on behalf of the people of Malawi. The people of Malawi deserve such minimum adherence to the exercise of State authority.